March 03, 2006

Detering Frivolous Medical Malpractice Suits

Jeffrey Segal, M.D., is a board-certified neurosurgeon and the founder and president of Medical Justice Services, Inc.,which offers proactive services designed to deter proponents of frivolous medical malpractice lawsuits.

One of my favorite frivolous medical malpractice lawsuits is the case of the urologist who performed a vasectomy. Afterward, a laboratory study showed the sperm count to be nil. A repeat study again showed the sperm count to be nil.

What you had was a successful vasectomy.

That was until the patient’s wife became pregnant a year later.

What happened next? The couple filed suit against the urologist–-and the case lasted for two years. Two years of meetings and depositions. Two years of court hearings. And two years of time–-and costs–-that the physician had to undergo, not to mention the cost to his reputation.

A few things in the court proceedings were undisputed: The woman was indeed pregnant;The vasectomy had been performed and the tests had come back negative for sperm.

There were, obviously, two logical possibilities: (a) The vasectomy failed down the road or (b) the husband was not the biological father. Urologists know that vasectomies are not 100% protective over time. Occasionally, the vas deferens will "recanalize." Patients know it, too-–because it’s written down in black-and-white on informed consent forms.

Either way, the doctor was not "at fault." Even if the vasectomy failed, it would not be negligence. There was, then, no reasonable basis for a plaintiff’s attorney to proceed.

Maybe there was an unreasonable basis to keep going: Someone saw an opportunity to make money. Bring a lawsuit, posture as much as you can, force a settlement, and go on to the next case.

But it didn’t work out that way. Not this time. It turns out that while husband was receiving his vasectomy, his wife was receiving "treatment" by another man; such treatment being non-medical in nature. The marriage, obviously, did not last as long as the vasectomy.

The point is that someone else, a third party other than doctor and patient, played a role in pushing the case forward. Not surprisingly, the husband trusted his wife. But the patient had no trust in his doctor. Had there been a better level of trust between the doctor and his patient, none of this (the lawsuit, at least) might have happened.

It’s not surprising that a better level of trust is something that doctors want. What is surprising is that so do patients. And they are willing to put it in writing stating that they will not sue the doctor for frivolous reasons and, should there be a dispute, the patient will use a board-certified expert witness in the physician’s specialty who follows the code of ethics for his/her professional organization(s).

Effective healthcare is a partnership, in which doctors and patients alike have a stake in trusting each other.

The current remedy for filing a frivolous lawsuit is the tort of malicious prosecution, a high threshold for the physician to reach. The contract remedy provides a lower bar for a reasonable remedy. More importantly, with a contract, the patient would already be on notice that he or she had already agreed not to bring a frivolous case at the beginning --making it less likely that a frivolous case would be brought. We've found that the agreements effectively build a bond of trust that frees up the doctor to concentrate on providing effective medical care.

When the relationship between doctor and patient is treated as a partnership, then healthcare reform will have a chance to work. The biggest benefit? It’s something physicians can do right now, whether or not there is substantive tort reform.

Comments

This case would not qualify for "malicious prosecution" which requires an accusation of a crime. "Improper civil litigation" is the proper tort.

(The defendant in malicious prosecution cases has accused the plaintiff of a crime and instigated criminal prosecution. But in "malicious civil prosecution" the defendant has brought a civil action against the person who is now the plaintiff. If it was brought without probable cause, was malicious, and was terminated in favor of the person who is now plaintiff, there may be a cause of action for malicious civil prosecution under that name or under some other descriptive term. [Torts and Compensation, Dobbs and Hayden 1997])

I'm not sure why you consider this frivoulous or malicious. I am in this situation right now. I am pregnant by a man who had a vasectomy. I am probably going to end up being a single Mom - it's going to cost money to raise the child that I didn't think was possible. I also didn't discover the pregnancy until it was rather far gone (too far to terminate it) for that same reason. I've since heard about this "recanalization" but not until it was a moot point for me. I don't think it's common knowledge. My partner had his vasectomy years ago - long before we met. Should all guys who get vasectomies use condoms as well, just in case, and if so, doesn't that kind of defeat the purpose of having the vasectomy in the first place. I'm not trying to get rich - I just want to have the financial resources to care for my child. My partner underwent a surgery that was supposed to leave him sterile and now there is going to be a child - why are we (mostly the child) not entitled to some kind of compensation for that?

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Carl Hanson, chief operating officer of the county-run Minidoka Memorial Hospital in southern Idaho hospital's, explained as they get out of the baby business. Read

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Crisis by numbers:

$4.6 million

New York state grants available to expand the use of electronic medical records. Such initiatives have been hailed nationally as a way to cut medication errors, save money and improve patient safety. LINK

$700,000

Amount raised by Fairness and Accountability in Insurance Reform to oppose malpractice limits in Arizona. LINK